Publication first appeared in the American Bar Association Section of Administrative Law & Regulatory Practice's Administrative & Regulatory Law News Winter 2016 edition.  Reposted with permission.

The Administrative Conference of the United States recently held its 64th Plenary Session. This column provides an update of the recommendations adopted at the plenary session and a selective list of the agency’s current projects.

December 2015 Plenary Session

The Administrative Conference held its 64th Plenary Session on December 4, 2015 and adopted three recommendations. Brief descriptions of the recommendations follow. Reach out to the listed staff contact with any questions or implementation-related suggestions you have.

  • Technical Assistance by Federal Agencies in the Legislative Process: Congress often asks agencies to review and provide neutral feedback on draft legislation. This type of legislative activity is considered technical drafting assistance, which can ensure that proposed legislation is consonant with the existing statutory and regulatory scheme. This recommendation highlights best practices for the provision of technical assistance on draft legislation. (Alissa Ardito, aardito@acus.gov)
  • Declaratory Orders: Even though the Administrative Procedure Act authorized the use of declaratory orders in administrative adjudications some seventy years ago, few agencies have ever made use of them with any regularity. This recommendation first identifies contexts in which agencies should consider the use of declaratory orders as an alternative to other forms of regulatory guidance. The recommendation then suggests best practices governing the procedures to be used in declaratory order proceedings, public notice of such proceedings, and the timely disposition of petitions for declaratory orders. (Amber Williams, awilliams@acus.gov)
  • Designing Federal Permitting Programs: This recommendation considers federal permitting systems—a topic that has been the subject of recent activity by both the White House and Congress. The recommendation discusses both “general” permits (which are granted so long as certain requirements are met) and “specific” permits (which involve fact-intensive, case-by-case determinations), as well as intermediate or hybrid permitting programs. The recommendation provides factors for agencies to consider when designing or reviewing permitting programs and encourages agencies to adopt permitting systems that decrease burdens on both agencies and regulated entities while still maintaining required regulatory protections. (Connie Vogelmann, cvogelmann@acus.gov)

Current Projects

The Conference has a full slate of projects in various stages of development. Brief descriptions of selected projects follow. Reach out to the listed staff contact with any questions you have.

  • Aggregate Agency Adjudication: This project studies recent efforts by agencies to aggregate administrative proceedings. Very little is known about: (1) how agencies choose the cases appropriate for aggregation, (2) which aggregation tools agencies use, (3) the successes and failures of aggregation programs, (4) how often agencies employ aggregation procedures, and (5) other types of proceedings in which different aggregation tools might facilitate more expeditious and fair handling of large groups of claims. The goal is to identify the types of agency adjudications in which aggregate procedures have the greatest potential, the challenges and obstacles to greater use of aggregation, and best practices for agencies that wish to use aggregation mechanisms. (Amber Williams, awilliams@acus.gov)
  • Electronic Case Management in Federal Administrative Adjudication: This project studies the use and incorporation of electronic case management in agency adjudication in order to make recommendations and share best practices. The project will not only examine the creation and maintenance of an electronic system in which users may file and manage documents but also will consider various procedural changes that must be made to accommodate such a system. The implementation of an electronic system can be instrumental in streamlining an agency’s adjudication practices, improving interagency communication and access, and upgrading technology in related functions, such as hearing recording systems. (Amber Williams, awilliams@acus.gov)
  • Negotiated Rulemaking: This project builds on two past Conference Recommendations (Recommendation 85-5 and Recommendation 82-4, both entitled Procedures for Negotiating Proposed Regulations) and studies the use of negotiated rulemaking and other collaborative mechanisms to involve stakeholders in the process of crafting agency rules. The project aims to identify the optimal contexts for the use of negotiated rulemaking and investigate potential alternative avenues of collaborative policymaking that agencies may use when negotiated rulemaking is impractical or otherwise inadvisable. (Reeve Bull, rbull@acus.gov)
  • Ombudsman in Federal Agencies: This project aims to identify the extent to which federal agencies make use of ombuds and to describe the scope of ombuds activities. The project seeks to identify which ombuds activities have improved agency dispute resolution or program function and provide updated best practices for the establishment and operation of ombuds offices. (David Pritzker, dpritzker@acus.gov)
  • Regulatory Waivers and Exemptions: Federal agencies sometimes grant to regulated parties temporary or permanent “waivers” or “exemptions” from regulatory requirements. Legally and theoretically distinct from prosecutorial discretion, waivers and exemptions may be useful tools for agencies and offer benefits to regulated parties. At the same time, they may also come at the cost of fairness, predictability, and accountability. This project draws conceptual distinctions among waivers, exemptions, and prosecutorial discretion; examines current practices in agencies that grant waivers and exemptions; reviews statutory and doctrinal requirements; and seeks to make concrete procedural recommendations for implementing agency best practices. (Alissa Ardito, aardito@acus.gov)
  • Self-Represented Parties in Administrative Hearings: This project developed out of a working group on the subject which was co-chaired by the Conference and the Department of Justice’s Office for Access to Justice. It seeks to study and develop best practices for agencies to improve fairness and efficiency in administrative hearings involving self-represented parties. (Connie Vogelmann, cvogelmann@acus.gov)
  • SSA Federal Courts Analysis: The Social Security Administration (SSA) engaged the Office of the Chairman to conduct an independent study of federal court review in social security disability insurance and supplemental security income cases by, among other things, evaluating federal court interpretation and application of SSA’s regulations and examining SSA’s acquiescence rulings and how the agency applies decisions of federal appellate courts that diverge from the agency’s policies. The goal is to offer SSA recommendations for bringing consistency to the adjudication of disability cases in federal courts. (Gisselle Bourns, gbourns@acus.gov)

Although the Conference is currently working on a full slate of projects, it is always interested in receiving project ideas on timely and important issues in administrative law. If you have any questions about the Conference’s activities, or want to submit a project idea, please contact Research Chief Reeve Bull at rbull@acus.gov.